Net Neutrality Isn't Dead Yet

The court decision is disastrous, but not because it struck down the net neutrality rules.

Judging by the headlines over the past week, one would think that the Federal Communications Commission (FCC) was dealt a crushing blow when the DC Circuit Court of Appeals struck down the agency’s net neutrality rules.

Under the headline “Net neutrality is dead. Bow to Comcast and Verizon, your overlords,” Los Angeles Times business columnist Michael Hiltzik reported that the ruling “was worse than the most dire forecasts” and “thoroughly eviscerated” the FCC. At Slate, longtime net neutrality advocate Marvin Ammori wrote that “the court loss was even more emphatic and disastrous than anyone expected.”

The reality is that the court decision is disastrous, but not because it struck down the net neutrality rules.

The suit by Verizon challenging the 2010 rules was ultimately a challenge of the FCC’s statutory authority to regulate the Internet. It had been an open question how far the FCC could go. The ruling answered that question, as Ammori would say, emphatically. While the court found that the Commission could not issue net neutrality rules the way it did, thus striking them down, it nevertheless made it clear that Congress gave the FCC (and also state public utility commissions) broad powers to regulate in the name of encouraging broadband deployment.

That means that the FCC can reintroduce net neutrality rules as long as they make a colorable argument that they “encourage the deployment … of advanced telecommunications services,” as the Telecommunications Act reads. In fact, under the ruling there’s little the FCC and state commissions can’t do as long as it is meant to “encourage deployment.” This includes setting rates not just for broadband, but also potentially for services offered over broadband, such as video services like Netflix.

The FCC might even have the authority now to require blocking of sites suspected of hosting pirated content, just as the rightly defeated Stop Online Piracy Act would have done. After all, a case could be made that piracy affects the viability of music services like iTunes or Pandora, and the health of those services contributes to the demand for broadband, which the FCC is now empowered to “encourage” with any “regulating methods that remove barriers to infrastructure investment.”

The Wall Street Journal’s Tom Gara captured the real meaning of the decision best by quoting Obi-Wan Kenobi telling Darth Vader, “If you strike me down, I shall become more powerful than you can possibly imagine.” And yet, even though their putative Jedi champion, the FCC, has grown more powerful, proponents of net neutrality should also be worried.

In a prophetic 2009 article, written at time that the net neutrality rules were first being proposed, Corynne McSherry wrote for the pro-neutrality Electronic Frontier Foundation that proponents should be careful of what they wished. “‘Net neutrality’ might very well come to be remembered as the Trojan Horse that allowed the FCC take over the Internet,” she warned, noting that if the FCC was allowed to claim broad authority “for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like).” For example, it wouldn’t be difficult to imagine a future FCC using new broad powers to regulate for “decency” online the way it does in broadcasting, she wrote.

In his first statement after the ruling, FCC Chairman Tom Wheeler felt compelled to reassure us that the Commission will be judicious with its new powers.

“The government, in the form of the FCC, is not going to take over the Internet,” he said. “It is not going to dictate the architecture of the Internet. It is not going to do anything that gratuitously interferes with the organic evolution of the Internet in response to developments in technology, business models, and consumer behavior.” But he also stressed that the FCC “is not going to abandon its responsibility to oversee that broadband networks operate in the public interest.”

That raises the question, what exactly is in the public interest? It’s whatever a majority of FCC commissioners think is in the public interest. And that should worry anyone who cares about an open Internet where entrepreneurs can innovate without first seeking permission from government.

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  • Paul.||

    Corporate Netflix shills to comment in 3...2...1...

  • Sigivald||

    How much is Google paying you to poison the well?

    (See how that works?)

  • DenverJay||

    you forgot to say "first"

  • Swiss Servator, Befehl!||

    You would think the statists would realize that they will end up driving people to new infrastructure and away from where the NSA can spy easier, the taxing authorities can grab theirs, etc.

  • John Galt||

    ...and the State simply follows to the new infrastructure. "Big Brother is everywhere, now and forever."

  • DenverJay||

    sure, because the Statists are people who routinely use logic and the results of past experiments in social/political systems to rationally develop their idealogy

  • Paul.||

    proponents of net neutrality should also be worried.

    Proponents of net neutrality are, by definition, too dumb to be worried. Despite decades of failures, this time, they believe, it'll work.

    Give the federal government control of how packets flow over the internet, what could possibly go wrong?

  • Matrix||

    Well, it's not much better to allow companies with local monopolies to control it either.

  • Sevo||

    So?

  • SMcBride||

    You don't understand. Some company might abuse the current situation at some indeterminate time in the future. We must regulate now to stop this imagined future.

  • John Galt||

    Poop!

  • Paul.||

    How did they get a local monopoly?

  • Matrix||

    local governments, of course.

  • Sevo||

    Yes, and what is your point?

  • Sigivald||

    Except they've never actually, you know, done the things the Neutrality people are telling me to worry about, with their cute little "pay $5/mo to use Facebook!!" graphics.

    Whereas States consistently do horrible damage with control of the Internet.

    (And per comments below, if the problem is "monopolists could control it!", the solution is to remove the governmental grants of monopoly, which are what all the Cable Monopolies are.

    Not to apply more of the source of the problem to try and fix it.)

  • Bryan C||

    Local monopolies which were established and are maintained by...the government.

    They're here to help.

  • ||

    Well, it's not much better to allow companies with local monopolies to control it either.

    I live in a rural community of 35,000 people and we have 4 internet service providers to choose from in addition to cellular service options. The "ZOMG! MONOPOLIES!" argument is bullshit, and even if weren't, who do you think is going to be more responsive to the needs and desires of broadband customers: internet service providers or the fucking government?

  • John Galt||

    I'm in a lovely community of 5,000 and have 5 ISPs to chose from. Only one choice per 1,000 people seems a horrible monopoly. Anyone with even a little common sense realizes there should by right be 5,000 choices. Until we're all supplied with our own private ISP "neutrality" is gravely threatened. Or even better, let's just put a nasty old Harpy like Hillary in charge of everything. Her brother by another mother, little Albert Goron invented the Internet anyway. So it's not like it doesn't belong to their royal lineage anyway.

  • ||

    For example, it wouldn’t be difficult to imagine a future FCC using new broad powers to regulate for “decency” online the way it does in broadcasting, she wrote.

    I almost wish they would so I could pee in net neutrality proponents soup.

  • Wintermute||

    Written like a true monopolist.

  • Sevo||

    ^?

  • Cytotoxic||

    He's a moron.

  • Freddy B||

    I'm not sure I understand why the FCC or any government regulatory agency needs any authority over the internet, aren't civil courst sufficient as a means of protecting individual property rights? I know it is difficult for indivuals to protect intellectual property in such an environment, but personally I'd rather have the difficulty of civil courts than broad government regulatory power over a commercial and communication platform like the internet.

  • IT||

    With the exception of wireless communication as it related to the internet and the like, I can't see any reason for the FCC to be involved.

    But of course that is what old sclerotic agencies do. Overstep their bounds in plodding, unproductive ways.

  • ||

    With the exception of wireless communication as it related to the internet and the like, I can't see any reason for the FCC to be involved.

    A lot of the network backbone of the internet runs through public land or regulated public utility infrastructure, so the government treats it like it's Amtrak or something.

  • Number 2||

    And while we are on the subject of agencies overstepping their bounds, note how the FCC interprets the D.C. Circuit decision.

    The decision held that the FCC could act to "encourage broadband deployment. " As broad as that can be interpreted, it is nowhere near as broad as asserting the power "to oversee that broadband networks operate in the public interest," as claimed now by the FCC chairman. Ask the broadcast networks how that's working out for them.

    The EFF will come to rue the day it invited the FCC vampire across the threshold of the internet.

  • Sevo||

    "The EFF will come to rue the day it invited the FCC vampire across the threshold of the internet."

    Yep, soft lefties who can imagine the government doing bad things but really certain it won't here, 'cause we're new! And cool!

  • IT||

    Support for net neutrality is incompatible with libertarianism and free (sort of) markets.

  • Christophe||

    Well, it's a nice principle and generally speaking I'd prefer it if telcos abided by it.

    Now, getting the government to be the enforcer is a terrible idea, especially given how non-existent the problem has turned out to be.

  • montana mike||

    Reminded me of the Fairness Doctrine bs. I googled and on the first page were a couple progdorkbloggers decrying it's death.

    We need to kill the FCC or they may force radio stations to air the Rhodes beotch when all evidence points to the fact nobody is listening voluntarily. Good morning PRK.

  • TheZeitgeist||

    The end result is what Establishment Inc. ultimately needs for it's succor: Billable hours and lobbyists.

    Permanet quo statu, as they might once have said.

  • Anvil||

    The ruling was never a real "victory", but rather a re-do to make it more restrictive.

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  • cheap kits||

    Whereas States consistently do horrible damage with control of the Internet.

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